Four years after the Legislature eliminated the last vestiges of the Rockefeller Drug Laws and opted for a less punitive and more rehabilitative approach to addiction, the Office of the Special Narcotics Prosecutor reports a steady decrease in the percentage of defendants ending up in treatment.

Bridget Brennan, New York's special narcotics district attorney with citywide jurisdiction, said the decline in treatment diversions reflects what may be an unintended consequence of the drug law reform movement: In reducing prison sentences, the Legislature perhaps inadvertently reduced the incentive to go into treatment and in large measure hindered the prosecution's sway to encourage offenders to go into and stick with what can be a rigorous and painful rehabilitation.

"The concept behind alternatives to incarceration was that you use the leverage or hammer of incarceration as an incentive for people to give up their addiction and get straight and sober and live a law-abiding life," Brennan said. "To the extent the incentive is diminished, you are going to get fewer and fewer people into alternatives to incarceration programs. That is what we are seeing."

A recent analysis by Brennan's office shows that only 6 percent of the defendants sentenced last year were diverted to treatment, compared to 12 percent in 2008, the year before the most recent reforms. Brennan said that given the choice, many offenders would prefer a jail sentence that could be shorter, and easier, than intensive treatment.

"When a defendant who is addicted and weighing the options and considering whether they want to go through a treatment program, which is 12- to 15-months long, or opt for a sentence that may result in a period of incarceration that is no more than six or nine months, the calculation is pretty straight-forward," Brennan said. "A treatment program isn't just fairy dust which is sprinkled on a defendant and makes the addiction go away. It is tough work."

Acting Supreme Court Justice Jo Ann Ferdinand, who began presiding over a Brooklyn treatment court in 1996, agreed that the reduction in prison sentences may discourage some from committing to a treatment program.

"The thing about a drug addict is to delay the consequences as much as you can so you can continue to get high," Ferdinand said. "If you turn down treatment, you can still get a non-jail sentence. Some people who need that treatment might take what they think is the easy way out."

Ferdinand said she is seeing "a lot of people turn down the offer to be assessed for treatment," and has to "assume a good number believe probation is easier." But overall, Ferdinand said, she is supportive of the drug reform laws, which allow diversion not only for drug offenses but several other crimes, such as burglary, where the misconduct was fueled by the need to feed an addiction.

"The most important thing about the law is that diversion is now a legislatively authorized disposition," Ferdinand said. "For the first time, the Legislature has acknowledged that people commit crimes as a consequence of their own substance abuse and that judges have the authority to admit people into diversion as a proper disposition of a felony. The result of the law is that far more people are eligible for diversion than ever before. This is far more important than the possibility that reduced sentences will encourage drug addicts to reject diversion."

John Coppola, executive director of the New York Association of Alcoholism and Substance Abuse Providers, or ASAP, said he believes that any drop in the percentage of defendants going to drug diversion may be due to a combination of district attorneys pushing for jail sentences for defendants, defense attorneys who are taking a "numbers" approach to which penalty lasts longer and defendants choosing jail instead of treatment.

"Given the option of jail and treatment, it's not unusual for someone to pick the jail time," Coppola said.

But Coppola said he doesn't believe the lower rate of offenders entering treatment is an indication that the reform has failed. Instead, he said it could represent a positive "indication that the inmate has some discretion."

William Gibney, director of the criminal practice special litigation unit at the Legal Aid Society, said he has observed that some defendants choose jail or probation over treatment. But Gibney said the Rockefeller reforms overall have led to more offenders getting the treatment they need to cure their addiction and end the cycle of crime.

The Rockefeller Drug Laws, roundly deemed the most punitive in the nation, were gradually reformed over the past several years.

In 2004, for instance, the Legislature eliminated life sentences for the most serious offense, Class A1 and A2 crimes, reduced the sentence for Class B predicate felons and made first-time B-felons eligible for a non-incarceratory sentence. Five years later, it largely purged the Penal Law of what was left of the Rockefeller Drug Laws. (See Timeline of Key Developments.)

Drop in Drug Felons in Prison

State statistics show a dramatic decrease in drug felons in state prison. At the end of 2005, there were more than 14,000 drug felons in state prison; as of Dec. 31, 2012, there were fewer than 7,000. There were more than 9,000 felons in state prison in 2005 for drug sales, and less than 4,000 last year.

"There have been times when we have seen a defendant re-arrested and we thought we'd just sent him to prison, and already he's out," Brennan said. "The thing you have to watch out for is maintaining the confidence of a community. If the community sees someone who has been a big problem and they just turn around and come out again, it is demoralizing."

The impact the reform measures have had on the prison population is open to debate since, according to the Division of Criminal Justice Services (DCJS), the numbers have been declining steadily since peaking in 1996. DCJS statistics suggest that the downward pattern continued in the wake of the 2004 and 2009 reforms, but it is unclear how much the sentencing restructure impacted an already established trend.

Brennan's analysis also shows a marked increase in the percentage of judicial diversion applicants claiming an addiction to marijuana. Many of them, she suspects, are drug dealers, not addicts, who are gaming the system, pretending to have an addiction so they can get diverted to treatment rather than sent to prison for peddling hardcore drugs.

"If they are not addicts, treatment is just a costly ornament," Brennan said. "If the addiction isn't the motivation for the criminal behavior, treatment is meaningless."

Brennan's office handles a large portion of the city's most serious drug crimes, all of which are felonies, and she said she believes the statistics in her analysis are reflective of the city as a whole. However, they may not reflect what has occurred outside the city since the reforms were implemented, observers say.

Timeline of Key Developments

April 2009: State Legislature enacts sweeping drug law reforms, eliminating the vestiges of the harsh Rockefeller Drug Laws. The reforms are implemented incrementally:

Sentencing reforms include the elimination of mandatory minimums for first-time B drug convictions, such as third-degree possession or sale, drug sales near schools and the manufacture of methamphetamine, so offenders can be sentenced to probation or local jail.

Mandatory minimums for second-time B drug convictions reduced to 2 years from 3 1/2 years.

Mandatory minimums for second-time C, D and E drug convictions are eliminated.

Eligibility for Shock Incarceration Program expanded to make second-time B offenders eligible. Judges are given discretion to order offenders into the Shock program.

June 2009 Conditional sealing authorizes judges to conditionally seal the offense and up to three prior misdemeanors if an offender successfully completes a judicial diversion program.

October 2009: Judicial diversion/resentencing authorizes judges—over the objections of the district attorney—to divert to treatment individuals charged with felony B, C, D or E drug offenses or certain property offenses, such as third-degree burglary and third- and fourth-degree grand larceny, which were motivated by the defendant's addiction.

Previously sentenced B felony drug offenders in state prison can apply for resentencing under the new law.

November 2009: Life sentence authorized for defendants convicted as drug kingpins.

Gibney, at the Legal Aid Society, said the drug reform laws were a step in the right direction and applauded the fact that fewer people are going to prison. But he suggests further reforms, such as opening up the diversion program to more nonviolent offenders "where you can prove drug dependency was the cause of the problem."

Rochester City Court Judge John Schwartz, who started the first drug court in the state with the help of the Monroe County district attorney and public defender's office, also said more offenses should be diversion-eligible, such as fraudulent prescription charges.

"Any [nonviolent] crime that is addiction-driven should be allowed," said Schwartz, who is past chairman of the National Association of Drug Court Professionals.

Another flaw in the reform law, Schwartz said, is an odd disparity in the treatment of felons and misdemeanants. Schwartz said a judge has the discretion to dismiss a felony grand larceny charge of an offender who successfully completes a diversion program, but cannot afford the same benefit to someone who commits a misdemeanor petit larceny.

"It always stands to logic that if a felony qualifies for relief, that the misdemeanor should," Schwartz said. "It makes no sense they do not."

Schwartz, like several other longtime observers of the Rockefeller Drug Law reform effort, said the state is on the right track in increasing treatment options for addicts. But he said additional tweaking is necessary to adjust for anomalies that have developed over the past four years.